McLain v. McLain, C6-97-495

• Decision Date: 23 September 1997
• Docket Number: No. C6-97-495,C6-97-495
• Citation: 569 N.W.2d 219
• Parties: In re the Marriage of Vicki Sue McLAIN, petitioner, Respondent, v. Kelly Bryan McLAIN, Appellant.
• Court: Minnesota Court of Appeals

Page 219

569 N.W.2d 219

In re the Marriage of Vicki Sue McLAIN, petitioner, Respondent, v. Kelly Bryan McLAIN, Appellant.

No. C6-97-495.

Court of Appeals of Minnesota.

Sept. 23, 1997.

Review Denied Nov. 18, 1997.

Syllabus by the Court

1. Under the federal Parental Kidnapping Prevention Act, the Texas district court has continuing jurisdiction over the subject matter of its prior child custody determination as long as (a) Texas laws provide for such jurisdiction, and (b) the child or one of the parents continues to reside in Texas. As long as Texas retains jurisdiction under the PKPA and does not decline to exercise that jurisdiction, the PKPA prohibits a Minnesota court from modifying the prior Texas decision.

2. Where Texas laws recognize the continuing jurisdiction of the Texas court to modify visitation rights, the PKPA has effect even though Texas law confines this jurisdiction to visitation and does not give its courts continuing jurisdiction over a child custody placement decision after the child and the custodial parent establish another home state.

Lawrence Downing, Lawrence Downing & Associates, Rochester, for Respondent.

Jill I. Frieders, O'Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., Rochester, for Appellant.

Considered and decided by PARKER, P.J., and CRIPPEN and SHORT, JJ.

OPINION

CRIPPEN, Judge.

Appellant Kelly Bryan McLain, K.M.'s Texas parent, claims that the Texas district court retains continuing jurisdiction over the subject of visitation rights determined in its 1996 divorce judgment and that this continuing jurisdiction precludes the Minnesota courts from exercising jurisdiction over the proposal of respondent Vicki McLain to diminish these rights. Applying federal law that liberally requires full faith and credit for Texas jurisdiction in the case, we reverse the Minnesota trial court's decision to exercise its jurisdiction.

FACTS

The parties were married in 1992 and lived in Texas until they separated in March 1996. Their daughter, K.M., was born in 1995. On June 1, 1996, while Texas divorce proceedings were pending, respondent moved with her daughter to Minnesota, where respondent's family resides and she grew up. After the Texas proceedings were tried in July 1996, the parties stipulated to the resolution of their custody dispute, leading to the provisions of a September 1996 Texas judgment. This document places physical custody of the child with respondent, making her the "sole managing conservator" under Texas law. The judgment names appellant the "possessory conservator," a Texas designation for a parent with rights of visitation.

Under the Texas judgment, appellant was to enjoy bi-monthly visitation with the child in Texas beginning February 1997. But in December 1996, respondent made a motion in Minnesota to modify the judgment on visitation contacts. Following an ex parte order that declared the trial court could act in the case, a February 1997 order granted respondent an evidentiary hearing on her motion and temporarily suspended visits in Texas. Although the court did not address the parties' jurisdictional dispute in its order, the court observed on the record that Texas court powers did not diminish the freedom of the Minnesota court to act because no proceedings were pending in Texas.

ISSUE

Does the continuing jurisdiction of the Texas trial court over motions to modify visitation preclude assertion of Minnesota jurisdiction in the current dispute?

DECISION

This court reviews de novo the trial court's legal conclusion that it has jurisdiction to determine respondent's modification motion. See Mahoney v. Mahoney, 433 N.W.2d 115, 117 (Minn.App.1988), review denied (Minn. Feb. 10, 1989) (declaring de novo review on legal issues).

1. Prospective jurisdiction

Under Minnesota's version of the Uniform Child Custody Jurisdiction Act and the federal Parental Kidnapping Prevention Act, a Minnesota court has jurisdiction over a child custody or visitation dispute in four situations, commonly stated in terms of (i) the child's home state, (ii) the significant connection of a child and at least one parent in this state, (iii) a child-custody emergency, and (iv) the child's best interests, coupled with the fact that the courts of other states either have no lawful claim of jurisdiction or have declined to act. Minn.Stat. § 518A.03, subd. 1 (1996); 28 U.S.C.A. § 1738A(c)(2). In this case, respondent Vicki McLain states facts permitting a finding that Minnesota jurisdiction would serve the best interests of the child and that Minnesota jurisdiction could be upheld on any of the first three stated grounds.

Despite the existence of Minnesota court jurisdiction, the doctrines of continuing jurisdiction established under both the UCCJA and the PKPA may prohibit the exercise of this jurisdiction. Minn.Stat. § 518A.14, subd. 1 (1996) (precluding modification of another state's custody determination if the other court (a) "now" has jurisdiction under state law with "jurisdiction prerequisites substantially in accordance with" Minnesota's version of the UCCJA, and (b) has not "declined to assume jurisdiction to modify"); 28 U.S.C.A. § 1738A(f) (West 1994) (permitting modification only if other state's court "no longer has" continuing jurisdiction or declines to act). The prohibitions of these state and federal provisions are applicable regardless of whether proceedings are pending in the court with continuing jurisdiction. Because a motion to modify visitation has not been filed in the Texas district court, it has not been determined if that court would decline to act on respondent's proposal. See Minn.Stat. § 518A.06, subd. 3 (1996) (compelling court, if it learns of proceedings pending in another state, to consult with the court of the other state to determine the most appropriate forum for resolving the issues in question); Tex. Fam.Code Ann. § 152.006(c) (Vernon 1996) (same).

2. Continuing jurisdiction, PKPA

Under the Parental Kidnapping Prevention Act, the Texas district court, having previously made provision for the custody and visitation of K.M., has continuing jurisdiction so long as (a) the child or one of the custody claimants remains a resident of Texas, and (b) the laws of Texas provide that the court "has jurisdiction" over the subject matter of the dispute. 28 U.S.C. § 1738A(d), (c)(1).

Under the Texas family code, a "custody determination" deals with child custody, "including visitation rights." Tex. Fam.Code Ann. § 152.002(3) (Vernon 1996). Minnesota's version of the UCCJA includes a similar provision. Minn.Stat. § 518A.02(b) (1996). Under UCCJA provisions of both states, jurisdiction to make a "custody determination" can, under some circumstances, continue even where the child has since attained home-state status in another state. Tex. Fam.Code Ann. § 152.003(a)-(c) (Vernon 1996); Minn.Stat. § 518A.03. But, although the Texas family code states that Texas courts can have continuing jurisdiction to make "custody determinations" for children who have established a non-Texas home state, the Texas code also contains other provisions that are not found in Minnesota law, including one stating that a Texas court shall not modify "custody" of a child if the child and the custodial parent have established another home state. Tex. Fam.Code Ann. § 152.003(d) (Vernon 1996). ¹

Because the Texas courts broadly retain jurisdiction over a "custody determination" (which includes visitation rights) but cannot modify "custody" when the child and custodial parent have established a non-Texas home state, the statutes lack clarity on the question of whether the Texas courts retain jurisdiction to modify the visitation rights of a "possessory conservator" when, as here, the child and custodial parent have moved to another state. Examining these Texas laws, two appellate courts have determined that the Texas courts have continuing jurisdiction under Texas law over questions on the visitation rights of the "left behind parent." Heartfield v. Heartfield, 749 F.2d 1138, 1142-43 (5th Cir.1985); Welborn-Hosler v. Hosler, 870 S.W.2d 323, 327 (Tex.App.1994); Hemingway v. Robertson, 778 S.W.2d 199, 201 (Tex.App.1989); Hutchings v. Biery, 723 S.W.2d 347, 349 (Tex.App.1987).

Confirming Heartfield and its progeny, the 1995 Texas Legislature amended the Family Code provision on continued jurisdiction to declare (a) that continuing jurisdiction to modify a "managing conservatorship" ends when the child establishes another home state, but (b) jurisdiction to modify a "possessory conservatorship or possession of or access to a child" ends only when both parents live elsewhere and the child has established a new home state. Tex. Acts 1995, 74th Leg., ch. 20, § 1; Tex. Fam.Code Ann. § 155.003 (Vernon 1996).

In this case, respondent's evidence indicates that Minnesota is now K.M.'s home state but that appellant remains a resident of Texas. And respondent moves only for modification of visitation rights. ² Under Texas law, the Texas district court has continuing jurisdiction over the visitation issue. As a result, under the PKPA, the Minnesota court cannot modify visitation unless the Texas court has declined to exercise its jurisdiction. 28 U.S.C.A. § 1738A(f)(2) ³.

3. Texas law on its continuing jurisdiction

Is the continuing jurisdiction of the Texas court diminished by the fact that Texas law only recognizes this jurisdiction for visitation questions but does not protect Texas jurisdiction over custody placement issues? See 28 U.S.C.A. § 1738A(d) (declaring continuing jurisdiction of court issuing a "child custody determination" as long as (a) the court would retain jurisdiction under its own state law, and (b) the state is the residence of the child or a contestant). Given the disjunctive "or" used in the PKPA to define a custody determination as including an adjudication of custody "or" visitation, id. § 1738A(b)(3) (stating that "custody determination" includes adjudication of custody...